Com. v. Smith, D. ( 2022 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
DONALD BRADON SMITH :
:
Appellant : No. 124 WDA 2022
Appeal from the PCRA Order Entered January 7, 2022
In the Court of Common Pleas of Fayette County
Criminal Division at No(s): CP-26-CR-0001771-2016
BEFORE: PANELLA, P.J., MURRAY, J., and COLINS, J.*
MEMORANDUM BY PANELLA, P.J.: FILED: November 18, 2022
Donald Bradon Smith brings this appeal from the order denying his
petition filed under the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. §§
9541-9546. We affirm.
Around Thanksgiving in 2014, the twelve-year-old female complainant
and her mother were living at the residence of Smith and his wife in Cardale,
Pennsylvania. In addition to Complainant and her mother, another couple was
staying at the residence. Complainant had her own room, which was next to
the bedroom used by Smith and his wife.
Complainant accused Smith of initiating sexual contact with her on three
separate days in late November of 2014. Complainant’s account of the various
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* Retired Senior Judge assigned to the Superior Court.
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incidents included allegations of oral and digital sex, as well as Smith
penetrating Complainant’s vagina with his penis.
A jury convicted Smith of one count each of involuntary deviate sexual
intercourse (“IDSI”) and statutory sexual assault, and two counts each of
sexual assault and aggravated indecent assault.1 On January 3, 2018, the trial
court sentenced Smith to serve a term of incarceration of nine to eighteen
years for the conviction of IDSI and no further penalty on the remaining
convictions.
On direct appeal, Smith argued that the evidence was insufficient to
support the verdicts. On November 9, 2018, a panel of this Court affirmed
Smith’s convictions but, sua sponte, determined that a portion of his sentence
was illegal and remanded. See Commonwealth v. Smith, 171 WDA 2018
(Pa. Super. filed November 9, 2018) (unpublished memorandum).
On February 5, 2019, the trial court resentenced Smith to a term of
incarceration of nine to eighteen years. Smith did not file a direct appeal.
However, on March 6, 2020, Smith filed a pro se document with the trial court
requesting relief under the PCRA. Appointed counsel filed an amended PCRA
petition on April 20, 2020, which raised two claims of ineffective assistance of
trial counsel. The PCRA court held a hearing, and on January 7, 2022, the
PCRA court entered an order denying relief. This timely appeal followed, in
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1 18 Pa.C.S.A. §§ 3123(a)(7), 3122.1(b), 3124.1, and 3125(a)(8),
respectively.
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which Smith presents two issues that challenge the effective assistance of trial
counsel.
Our standard of review for an order denying PCRA relief is whether the
record supports the PCRA court’s determination, and whether the PCRA court’s
determination is free of legal error. See Commonwealth v. Phillips, 31 A.3d
317, 319 (Pa. Super. 2011). The PCRA court’s findings will not be disturbed
unless there is no support for the findings in the certified record. See id.Concerning ineffective assistance of counsel arguments, we presume
counsel is effective, and the appellant bears the burden to prove otherwise.
See Commonwealth v. Bennett, 57 A.3d 1185, 1195 (Pa. 2012). The
appellant must demonstrate: (1) his underlying claim is of arguable merit; (2)
the particular course of conduct pursued by counsel did not have some
reasonable basis designed to effectuate his interests; and (3) but for counsel’s
ineffectiveness, there is a reasonable probability that the outcome of the
proceedings would have been different. See Commonwealth v. Solano, 129
A.3d 1156, 1162-1163 (Pa. 2015).
We observe that claims of ineffective assistance of counsel are not self-
proving. See Commonwealth v. Wharton, 811 A.2d 978, 986 (Pa. 2002).
“A failure to satisfy any prong of the ineffectiveness test requires rejection of
the claim of ineffectiveness.” Commonwealth v. Daniels, 963 A.2d 409, 419
(Pa. 2009) (citation omitted).
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Pursuant to the first prong, we note that where an appellant is not
entitled to relief on the underlying claim upon which his ineffectiveness claim
is premised, he is not entitled to relief with regard to his ineffectiveness claim.
See Commonwealth v. Ousley, 21 A.3d 1238, 1246 (Pa. Super. 2011). In
short, counsel cannot be deemed ineffective for failing to pursue a meritless
claim. See Commonwealth v. Loner, 836 A.2d 125, 132 (Pa. Super. 2003)
(en banc).
Moreover, regarding the second prong, we have reiterated that trial
counsel’s approach must be “so unreasonable that no competent lawyer would
have chosen it.” Commonwealth v. Ervin, 766 A.2d 859, 862-863 (Pa.
Super. 2000) (citation omitted). Our Supreme Court explained our review of
reasonableness as follows: “Our inquiry ceases and counsel’s assistance is
deemed constitutionally effective once we are able to conclude that the
particular course chosen by counsel had some reasonable basis designed to
effectuate his client’s interests. The test is not whether other alternatives were
more reasonable, employing a hindsight evaluation of the record.”
Commonwealth v. Pierce, 527 A.2d 973, 975 (Pa. 1987) (citation omitted)
(emphasis original).
Concerning the third prong, we are mindful that prejudice requires proof
that there is a reasonable probability that but-for counsel’s error, the outcome
of the proceeding would have been different. See Commonwealth v. Pierce,
786 A.2d 203, 213 (Pa. 2001). When an appellant has failed to meet the
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prejudice prong of an ineffective assistance of counsel claim, the claim may
be disposed of on that basis alone, without a determination of whether the
first two prongs have been met. See Commonwealth v. Baker, 880 A.2d
654, 656 (Pa. Super. 2005).
Smith first argues that trial counsel was ineffective for failing to
challenge properly the inconsistencies between Complainant’s testimony at
the preliminary hearing and her testimony at trial. See Appellant’s Brief at 11-
13. Smith claims that a more detailed cross-examination of Complainant at
trial, using the transcript from the preliminary hearing, would have highlighted
the inconsistencies and discredited Complainant’s version of the events.
The PCRA court determined that trial counsel followed a reasonable
strategy in choosing not to question Complainant with the aid of the
preliminary hearing transcript. The PCRA court observed that trial counsel “did
not want the jury to hear of other allegations of penetration.” PCRA Court
Opinion, 1/7/22, at 2. In addition, the PCRA court noted that trial counsel
“explained that confronting the minor child’s nuances of testimony would
appear to revictimize her in front of the jury.” Id. Instead, trial counsel
“brought forth the inconsistent victim testimony through the prosecuting
office[r].” Id. The PCRA court ultimately concluded that trial counsel had a
reasonable basis for choosing to bring Complainant’s inconsistent version of
events before the jury through the investigating officer and not the minor
victim. We agree.
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Upon review of the certified record, we conclude that trial counsel
adequately cross-examined the prosecuting officer regarding the
discrepancies of Complainant’s version of events. Counsel was able to
highlight for the jury that Complainant’s testimony from the preliminary
hearing was inconsistent with the testimony she offered at trial. See N.T.,
5/3-5/17, at 114-119. Accordingly, the incongruity in Complainant’s
preliminary hearing and trial testimony was submitted to the jury without
appearing to exploit Complainant. Therefore, we can find no error in the PCRA
court’s conclusion that counsel’s trial strategy in this regard was reasonable.
Accordingly, Smith’s first claim challenging the effective assistance of trial
counsel fails.
Second, Smith argues that trial counsel was ineffective for failing to
adequately question his wife, Spring Smith (“Spring”). In his PCRA petition,
Smith suggested that trial counsel did not properly question Spring about the
couple’s living arrangements around the time of the incidents. See PCRA
Petition, 6/26/20, at 5. Smith posited that, because he and Spring were
staying with another couple, T.R. and A.R., he did not have the opportunity to
commit the crimes against Complainant. See id. Further, at the PCRA hearing
and in his appellate brief, Smith has alleged that trial counsel was ineffective
in questioning Spring because counsel “failed to elicit from Spring … the fact
that during the short period of time while [Smith] was out of prison, when the
alleged sexual assaults would have occurred, [Smith] was with [Spring]
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continuously[.]” See Appellant’s Brief at 14. Smith contends that trial
counsel’s failure denied Smith of the opportunity to discredit Complainant’s
testimony and denied Smith of a potential alibi defense. This challenge to the
effective assistance of trial counsel is contradicted by the record.
Our review reflects that trial counsel questioned Spring about who was
living in the residence around the time of Thanksgiving 2014. Spring testified
to the following people living together at the time, “It was me, [Smith],
another couple, Scott and Casey, and then [Victim’s mother] and her
boyfriend at the time, Bill, and then [Victim] had moved in.” N.T., 5/3-5/17
at 145. Accordingly, at trial Spring gave an explicit listing of the people who
were residing together at the time of the assaults described by Complainant.
T.R. and A.R. were not among the people specified. Therefore, Spring’s own
testimony negates Smith’s assertion that he and Spring were staying with that
couple.
Likewise, the record contradicts Smith’s allegation that trial counsel did
not question Spring about constantly being in Smith’s presence when Smith
was out of prison. At trial, Spring explained that in October of 2014, Smith
had pled guilty to retail theft and was awaiting sentencing on December 2,
2014. See N.T., 5/3-5/17, at 148. When trial counsel asked Spring about the
time while Smith was awaiting sentencing and incarceration, Spring testified:
“We spent every moment we could together, you know, other than the fact of
having to use the restroom or, you know, [Smith] would go with friends here
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and there, you know, … but when it came to being at the house we were
inseparatable (sic).” See id. Contrary to Smith’s allegation of what trial
counsel left missing from Spring’s trial testimony, this statement from Spring
establishes that defense counsel did elicit from Spring the assertion that she
and Smith were continuously in each other’s presence during the time that
Smith was awaiting sentencing.
Accordingly, any allegation that trial counsel was ineffective for not
adequately questioning Spring on these two points is refuted by the record.
Consequently, the underlying claims lack arguable merit. Therefore, Smith’s
contention that trial counsel was ineffective in this regard fails.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/18/2022
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